General Terms and Conditions
1. Scope
1.1 These General Terms and Conditions (hereinafter abbreviated to GTC) are fundamentally applicable to all deliveries, services and offers from Semeda Medizinische Instrument e.K. (hereinafter termed the Vendor), insofar as they are not expressly amended or excluded in writing. General Terms and Conditions for Purchasing on the part of the Buyer and other terms and conditions deviating from the GTC are only binding if they have been expressly acknowledged in writing by the Vendor.
2. Prices
2.1 Offers by the Vendor are non-binding.
2.2 All prices are quoted ex Vendor works, excluding German turnover tax, packaging, duties and fiscal charges, insofar as no agreement deviating from this has been expressly concluded. Buyers outside Germany must state their turnover tax identification number at the time of concluding the contract. They will then not be charged turnover tax.
2.3 Insofar as no other agreement is concluded, packaging and shipping are to be as the Vendor sees fit, with the costs being invoiced to the Buyer. The Buyer is responsible for disposing of the packaging.
3. Delivery
3.1 All deliveries are made ex Vendor works.
4. Delivery dates, delays
4.1 Delivery dates are applicable ex Vendor works (EXW). As a rule, they are non-binding and are only binding if this has been expressly agreed in writing. They are deemed to be met if the merchandise has been notified as ready for shipping at the agreed time. The Vendor shall be entitled to undertake part deliveries.
4.2 The Vendor is released from the obligation to make delivery for as long as the Buyer is in default of payments or the provision of other documents. Delays in delivery which arise without fault on the part of the Vendor entitle the Vendor to extend the delivery period by an appropriate period or to withdraw either fully or in part from the obligation to make delivery. Should the delivery date be exceeded in such instances by more than 60 days, the Buyer is entitled to withdraw wholly or in part from the unfulfilled part of the contract.
4.3 If the merchandise cannot be shipped for reasons for which the Buyer is responsible, then the Vendor shall be entitled to place the merchandise into store, at the risk and expense of the Buyer. The date of entry into store serves as the date of delivery in such instances; the stores slip replaces the shipping documents.
4.4 Where no other arrangement is agreed, merchandise is shipped at the risk and expense of the Buyer.
5. Retention of ownership
5.1 The merchandise remains the property of the Vendor until fulfilment of all claims due to it in respect of the Buyer. The Buyer is forbidden from engaging in prior pledging or assignment of the merchandise as security. The costs of any possible action in this regard shall be borne by the Buyer.
5.2 In the event that the merchandise supplied by the Vendor is sold on or transferred to third parties for some other legal reason before full payment of the purchase price, the Buyer hereby already assigns to the Vendor all claims against its purchaser to which it is entitled from the onward sale of the merchandise subject to retention of ownership, together with all subsidiary rights. On request from the Vendor, as soon as the Buyer is in default of payment, the Buyer is to notify its onward purchaser of the assignment of claims and to furnish the Vendor with the information required to collect the receivable and to hand over the necessary documentation. The Buyer is entitled and obliged, insofar as no other arrangement is specified by the Vendor, to collect the counter-value for the merchandise which has been sold on, which without further measures becomes the property of the Vendor, and to hold this payment for the Vendor separately from the Buyer's other payment funds.
5.3 In case of doubt, the retention of ownership remains in existence until the Buyer in each individual instance demonstrates that the merchandise has been fully paid for. In the event that a third-party claim is made on the merchandise which is subject to the Vendor’s right of retention of ownership, e.g. through pledging, or where third parties lodge claims against the receivable assigned to the Vendor, the Buyer is obliged to notify the Vendor of this without delay and to inform the third parties regarding the retention of ownership or the assignment of the receivable.
6. Payment
6.1 The purchase price is due in euros (€) on delivery and receipt of invoice, insofar as no other arrangement has been agreed in writing. The periods for payment are shown in writing on the invoice. Insofar as this has not happened, invoices are to be paid without deductions within 30 calendar days from the invoice date. If this period is exceeded, the Vendor shall be entitled to demand interest on the arrears, at the level designated in Section 288 of the German Civil Code (Bürgerliches Gesetzbuch, or BGB - 8% p.a. above the European Central Bank’s discount rate).
6.2 The Buyer is not entitled to withhold or delay payments on account of counter-claims which have not been expressly acknowledged by the Vendor or determined in law, or for any other reasons.
6.3 The payment date is deemed to be the day on which the money is received by the Vendor or by its bank.
6.4 If particular circumstances give rise to a justifiable reason for significant doubt as to the creditworthiness of the Buyer, all receivables arising from the business relations shall become immediately due for payment, and the Vendor shall be entitled to demand advance payment against deliveries.
6.5 Where the merchandise is customer-specific products (special manufacture, special orders), the Vendor has a fundamental right to advance payment of two-thirds of the agreed purchase price, payable at the latest 2 weeks before the start of production.
7. Repurchases
7.1 The Vendor will only take back merchandise in specially-justified circumstances. Repurchasing requires the Vendor's express agreement in writing or over the telephone, and without this no credit note shall be issued for returned merchandise. The value to be reimbursed in the event of a repurchase of merchandise is dependent on the age, condition and suitability for resale of the merchandise. The period of returns is 60 days.
7.2 Products which are expressly ordered to special requirements or which do not form part of the Vendor’s standard range of supplied products are fundamentally excluded from repurchasing arrangements.
7.3 The Buyer shall bear the risk of and costs for transporting merchandise which is being taken back. The exception to this is where the repurchase in question is due to a faulty delivery caused by the Vendor. In this case, the Vendor shall arrange for collection of the merchandise and shall bear the costs of shipping.
8. Complaints and claims for regress
8.1 Obligation to inspect and lodge complaints:
The Buyer is obliged to inspect deliveries of merchandise immediately
following receipt to ensure that it is undamaged and complete, and to check on
its quality. Complaints are to be notified to the Vendor within 10 days
following receipt of the merchandise, in writing or as a minimum by telephone.
Where the Buyer fails to give such notice, the merchandise shall be deemed to
be accepted without complaint and the delivery deemed to be performed in
accordance with contract. External damage which can be clearly identified at
the time of receiving the merchandise shall trigger an immediate complaint to
the haulier or the freight carrier.
8.2 Deviations which are customary in the trade: Deviations in quantities, dimensions, quality, weights etc. are permitted within the scope of what is customary in the trade. Equivalent changes are reserved.
8.3 Respecting instructions: Vendor instructions concerning the further processing or use of the contractual products are to be respected by the Buyer, otherwise claims for defects shall not be recognised.
8.4 Reworking, substitute delivery: Where the complaint of fault is notified in good time and is justified, the Vendor may firstly fulfil the order through follow-up actions. Where this subsequent fulfilment is unsuccessful, the Buyer's right to reduce the purchase price or to withdraw from the contract is reserved. More far-reaching claims on the Buyer’s part are excluded.
Where the Vendor has acknowledged the complaint of defects, the Vendor is obliged, as it sees fit, either to rework without charge or to replace all parts which within 12 months following the date of delivery become unusable or whose usability was significantly impaired due to defects in the materials, defective construction or defective working. The Buyer is obliged to grant the Vendor appropriate time and opportunity to effect repairs and to make delivery of substitute devices or replacement parts. If it refuses to do so, then the Vendor is released from the liability for the defects.
Acknowledgement of complaints of defects in all instances presupposes that these have been notified in writing to the Vendor immediately after they became apparent and, wherever possible, with samples being sent with the notification. The Buyer is obliged to retain merchandise which is the subject of a complaint at the disposal of the Vendor.
8.5 Liability: The Vendor’s liability is limited to intentional and grossly negligent conduct, insofar as there is no breach of the cardinal obligations of the contract in evidence. Furthermore, the liability for economic loss is limited to the foreseeable damages.
9. General points
All offers and contracts are based on Incoterms, in their respectively applicable version.
The law of the Federal Republic of Germany shall be applicable.
The sole place of jurisdiction is Hamburg. The Vendor reserves the right to lodge claims against the Buyer at its principal place of business, under the law which is applicable in that place.
Version: March 2006